Editor: As all who followed the Microsoft cases are aware, the appeals were not ordinary cases. Please give our readers a flavor of the special case management issues they presented.
Langer: The second of the Microsoft appeals was one of the highest profile cases that had come before the court in recent memory. As you will recall, the second appeal was filed after Judge Jackson found Microsoft in violation of the antitrust laws and proposed that the corporation be divided. Public interest in the appeal of the judge's ruling arose almost immediately. We were deluged with telephone calls and knew that we would be flooded with requests for copies of each pleading as it was filed.
Our chief judge at the time, Judge Harry Edwards, who is one of the most technology savvy judges, decided that the only way that we could satisfy the public interest would be to use whatever automation tools we could. One idea was to have the parties submit their briefs on interactive CD-ROMs.
Editor: How did CD-ROM briefs affect the amount of paper that the court and litigants had to deal with?
Langer: Everyone loved the fact that the CD-ROMs enabled the user to hyperlink to every case, statute and other document cited in the briefs. Given the voluminous record, everyone also loved the portability that allowed them to pack a couple of CD-ROMs into their briefcases, rather than reams of paper. The use of CD-ROMs was instrumental in helping to manage what would otherwise have been a mountain of filings.
Editor: How did the electronic case filing (ECF) system used in the Microsoft cases address the data integrity, privacy, authentication and security issues related to electronic records management?
Langer: The Administrative Court of the U.S. Courts provided us with a pilot version of an appellate ECF system. The ECF system was already up and running in many of the district courts and bankruptcy courts across the country. The appellate version was in its infancy. With a little training, the parties were essentially able to electronically file and docket their own pleadings (subject to review by the Clerk's Office staff).
The ECF system includes complicated authentication with unique numbers assigned to each document. Because the Microsoft appeals were part of a hard-fought case, we anticipated that any concern about data integrity, privacy or security would be brought to our attention immediately by opposing counsel. None were.
Editor: How did technology help you to give the public real-time access to the appellate record?
Langer: As pleadings were filed, we made them simultaneously available on the Internet. Anyone who had access to the Internet could visit the DC Circuit's web site and click on a link that would take them to a copy of the Microsoft docket. The docket listed the pleadings with a link that would take them to the pleading in a .pdf format that could be downloaded.
We also created a listserv. Anyone who joined the listserv would receive a notice when a pleading was filed or the court entered an order. The user could then come to the DC Circuit's web site and learn about what had just happened in the case.
Editor: Did the general public, as well as the media, sign up for the listserv?
Langer: More than 3,000 users signed up. Because the signup was transparent, I cannot tell you the identity of the users. We did not require any user to give us any information other than the e-mail address to which our notices should be sent. I expect that the listserv would have included academics, people who have a strong interest in technology and other members of the public who were following the Microsoft cases closely.
In administering the listserv, we had wonderful cooperation from other circuits and the Administrative Office of the U.S. Courts. They enabled us to spread the heavy volume of traffic over the other circuits' servers so that it would not clog our server.
Editor: How did technology help you to address the public's interest in attending the Microsoft oral arguments?
Langer: The space for the public to view and listen to oral arguments is very limited in this courthouse. We have a ceremonial courtroom, but even that holds only a couple hundred people. A pass system was devised for those seats not reserved for the general public, and Judge Edwards, with the approval of the Court, decided that we would do a live Internet broadcast of the oral argument. This had never been done before in this circuit.
The media was very cooperative. The major networks set up pool lines and streamed the broadcast over a live feed to the Internet. Although only a few media could plug into the on-site hardware, an unlimited number could broadcast from the live feed.
It worked very well throughout the two-day, seven-hour hearing. We had no technical problems that I am aware of, despite the enormous amount of traffic.
Editor: What was the reaction to the appellate court's use of technology in managing the Microsoft appeals?
Langer: We got a tidal wave of praise and appreciation from the media, public and litigators on the way the Microsoft appeals have been handled from beginning to end. Public access to pleadings and rulings was virtually simultaneous with the filings. As in many cases, the only complaint was that I was not permitted to predict the exact date on which an opinion was going to come down.
Editor: What recommendations do you have for litigators interested in innovative case management techniques?
Langer: It is important to keep the lines of communication open to identify a contact person in the clerk's office. If a litigator cannot figure out what the court wants, do not try to guess. Call the contact person. I spent a lot of time on the phone with the lead counsel on both sides in the Microsoft appeals. It was useful all the way around in addressing the unique case-management issues we faced.
Published March 1, 2004.